Enab Baladi – Muhammed Fansa

The Netherlands and Canada dragged Damascus to the International Court of Justice (ICJ) over allegations of torture, marking the first such case since 2011 based on Syria’s non-compliance with the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the two countries called to take “emergency measures” to protect those at risk of torture, the UN’s top tribunal said on June 12.

The case accuses Syria of breaching a UN convention against torture by mistreating and disappearing detainees, committing sexual violence, including against children, and even by the use of chemical weapons, the AFP reported.

The Dutch and Canadian case said Syria “has committed countless violations of international law since 2011.”

It alleges “abhorrent treatment of detainees, inhumane conditions in places of detention, enforced disappearances, the use of sexual and gender-based violence, and violence against children.”

The violations “also include the use of chemical weapons, which has been a particularly abhorrent practice to intimidate and punish the civilian population.”

They asked the ICJ to order Syria to halt “arbitrary detention” and release unlawfully detained people, reveal the burial sites of people who died in detention, and preserve any evidence, including medical records, according to the AFP.

What is the outcome of the lawsuit?

“There can be no sustainable peace and lasting reconciliation in Syria without… justice for its victims and survivors,” Canadian Foreign Minister Melanie Joly and her Dutch counterpart Wopke Hoekstra said in a joint statement.

“Major next step on the long road to that goal,” Hoekstra added.

The Syrian-British Ibrahim Olabi, Barrister at Guernica 37, who participates as one of the Dutch government’s advisors in this case, told Enab Baladi that the case is divided into two parts with regard to what the court may rule.

The first is “temporary measures” that the Netherlands and Canada demanded to be implemented immediately, and the court is expected to decide on them within a short period.

If the court approves these temporary measures, it will order the Syrian regime not to commit any violations related to the issue of detainees and their conditions in prisons, and other related procedures, according to Olabi.

Temporary procedures or measures are considered “legally binding” if the international court adopts them against the regime, as it is a party to the Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment.

While the regime’s implementation of these measures is linked to the general political atmosphere, noting that the pressure of the International Court in this direction is greater compared to other requests from non-judicial parties, Olabi said.

The Dutch and Canadian governments are seeking to hold the regime responsible for gross human rights violations and torture under the UN Convention against Torture, which Damascus ratified in 2004.

If the court finds it has jurisdiction, the UN Court of Justice will be the first international court able to reach a legal conclusion on the regime’s use of torture in Syria.

As for the second part, it is related to the lawsuit filed and what it will constitute in terms of international recognition by an international court of the regime’s practice of torture since 2011, and the resulting claim for compensation and a demand for criminals to be held accountable, and placing the file of the regime’s torture crimes before the highest international court, according to the Syrian-British lawyer.

These moves come in light of the Arab normalization movement with the regime, its return to the Arab League, and the launch of an Arab-led initiative to resolve the Syrian file, according to the step-by-step path and UN Resolution 2254 that paves the way for a transitional phase in Syria.

International support

The US and Britain welcomed the decision of Canada and the Netherlands to initiate judicial procedures at the International Court of Justice to hold the Syrian regime accountable.

A statement by the US State Department on June 14 welcomed the decision of Canada and the Netherlands to initiate judicial procedures at the International Court of Justice to hold the regime accountable for torturing thousands based on human rights reports.

Britain, in turn, welcomed the judicial move, saying, “The Syrian regime uses torture, systematic sexual violence, and chemical weapons against the Syrian people. There can be no political solution in Syria without accountability for these crimes.”

Doubts were raised about the International Court of Justice’s rejection of the lawsuit from the Netherlands and Canada on the pretext that the regime will not agree to the court’s jurisdiction over such a case.

Olabi ruled out this matter and based his opinion on the fact that the regime had agreed to the Convention against Torture and had no reservations about Article 30 related to conflict resolution.

The article says that “Any dispute between two or more States Parties concerning the interpretation or application of this Convention which cannot be settled through negotiation shall, at the request of one of them, be submitted to arbitration.”

Olabi also explained to Enab Baladi that the court considered in a previous case that torture is a violation affecting the international community as a whole, and therefore any country can act even if it is not directly harmed by it.

The case began when the Netherlands submitted, in September 2020, a memorandum to the Syrian mission to the UN, calling on the regime to hold talks about the human rights violations it committed in Syria.

However, the regime’s non-commitment to the talks and its denial of torture called on the Netherlands to take judicial action at the International Court of Justice, and Canada joined the same procedure in 2021.

Since the beginning of the Dutch move, several countries, including the United States and Germany, and many Syrian civil society organizations have welcomed the move, but only Canada has joined the case.

On this issue, Olabi explained that the subject of lawsuits in the International Court of Justice is “non-numerical,” as it can be concerned with a lawsuit between a country and a country, or a country and two countries, and sometimes more than two countries can file a lawsuit against one country, such as the lawsuit that was filed by Saudi Arabia, the UAE, Egypt, and Bahrain against Qatar.

There will be room for all countries that want to comment or make an intervention in the case but not as a party to it.

A UN affiliate

The International Court of Justice is the main judicial organ of the United Nations.

The court adjudicates, in accordance with the provisions of international law, legal disputes that arise between states and provides advisory opinions on legal issues that may be referred to it by the UN bodies and its specialized agencies.

Its competence is represented in two primary roles: to handle legal disputes between states through adjudications and to issue advisory opinions on questions of international law.

It does not fall within the jurisdiction of the court to deal with cases at the individual level. In other words, it is not within its jurisdiction to implement international criminal law, whose basic principles include individual criminal responsibility. Rather, it is a court that deals only with complaints between member states of the UN.

The International Court of Justice deals with criminal matters, such as the issue of torture, as a matter of states violating their obligations under the ratified treaties, which forms the basis for what is known as the legal dispute between two states.

In such a case of legal disputes, the matter is not limited to dealing with bilateral relations between two states but is related to the obligations of the violating state towards all other states parties to the treaty and the duty of those states to confront and put an end to these violations.

The court consists of 15 judges, who are elected by the United Nations General Assembly and the Security Council for a period of nine years, and members can be re-elected.

One-third of the members are elected every three years, and two judges of the same nationality are not allowed. In the event of the death of one of the member judges, a replacement judge of the same nationality as the deceased is re-elected and holds his chair until the end of his/her term.